March 23, 2001
To: President/Superintendents
Member Community College Districts
From: Robert J. Henry, General Counsel
Subject: Student Trustee Participation in Board Evaluation of Superintendent
Memo No. 3–2001(CC)
Conclusion:
For the reasons set forth below it is our opinion that the governing board of a community college district may solicit input from the student trustee with respect to the superintendent’s evaluation but may not allow the student trustee to attend any closed session involving the board’s evaluation of the superintendent. In addition, the student trustee is not allowed to see or receive a copy of the board’s written evaluation of the superintendent, unless the superintendent agrees otherwise.
Confidentiality of Public Employee Evaluation
California statutory law recognizes that unless waived by the public employee the governing board’s evaluation of that employee is confidential.
This confidentiality is recognized in the Brown Act (see Government Code section 54957) which provides that the “evaluation of performance” of any employee is a permissible closed session topic. The California Attorney General has advised that “the purposes of the personnel exception is to avoid undue publicity or embarrassment for public employees and to allow full and candid discussion of such employees by the body in question.” (61 Ops.Cal.Atty.Gen. 283, 291, [1978].)
The confidentiality of public employee evaluations is also recognized in the Public Records Act (see Government Code section 6254) which exempts from public access “personnel … files the disclosure of which would constitute an unwarranted invasion of privacy.”
Statutory Role of Student Trustee
Education Code section 72023.5 provides that the student trustee may attend all open meetings and “shall be recognized as a full member of the board at the meetings, including receiving all materials presented to the board members …” I have construed this to mean all materials presented in public session.
Section 72023.5 also allows the student trustee, at the discretion of the board, to attend closed sessions “other than closed sessions on personnel matters …” In my opinion, this also precludes the student trustee from receiving documents related to the “personnel” matter that is the subject of the closed session.
Permissive Code
Education Code section 70902(a) provides as follows:
(a) Every community college district shall be under the control of a board of trustees, which is referred to herein as the "governing board." The governing board of each community college district shall establish, maintain, operate, and govern one or more community colleges in accordance with law. In so doing, the governing board may initiate and carry on any program, activity, or may otherwise act in any manner that is not in conflict with or inconsistent with, or preempted by, any law and that is not in conflict with the purposes for which community college districts are established.
This provision is often referred to as the “permissive code.” Under this permissive authority, the board has the authority to provide for input (either verbal or written) from the student trustee on the performance of the superintendent.
Rules Applicable to Superintendent Evaluation
Education Code section 87663(i) provides as follows:
(i) Governing boards shall establish and disseminate written evaluation procedures for administrators. It is the intent of the Legislature that evaluation of administrators include, to the extent possible, faculty evaluation.
LGL_UP/2001/3-2001(cc)
Generously provided by: Robert J. Henry, School and College Legal Services
